In the beginning, there was Section 300 of the California Family Code, which defined marriage as “personal relation arising out of a civil contract between a man and a woman,” subject to certain other restrictions. Somehow, that “man and woman” stuff wasn’t quite clear enough for some people, so four years ago, Californians voted overwhelmingly to enact Proposition 22, which added a separate section to the Family Code (that would be Section 308.5, but who’s counting). That provision specifies that only a marriage between a man and and a woman is valid or recognized in California. This cleared things up for about 99.9% of the population,* who now conceded that for better or worse, gay marriages were not legal in California.
Even most liberals (along with a few libertarians and conservatives) who voted against Proposition 22 understand that basic point. If Section 300 of the Family Code wasn’t clear enough to begin with, then surely Prop 22 was. However, they don’t seem to be too upset about the blatantly illegal “marriages” being performed up in Frisco right now. The prevailing attitude seems to be “Hey, if a city wants to perform fake marriages between two men, two women, three men and a dog, or any other combination not provided for under the Family Code, it’s no big deal. They’ll stop just as soon as an obviously conflicted judge finally gets around to telling them to do so, so in the meantime, what’s the fuss? It’s not as though they were commiting any crimes or anything, right?
Wrong. Here’s what Section 359 of the California Penal Code has to say on the matter:
Every person authorized to solemnize marriage, who willfully and knowingly solemnizes any incestuous or other marriage forbidden by law, is punishable by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the County Jail not less than three months nor more than one year, or by both.
As ol’ Gavin might put it, “oops.” This Ass. Press article, roughly 2,600 illegal weddings have occurred in Frisco so far, and that’s already out of date. More are continuing as we speak, all with Mayor Newsom’s blessing. He and all the clerks solemnizing these bogus “marriages” had better pray to God (or Allah, or Vishnu, or whoever the hell else Friscans pray to these days) that his sentences are concurrent.
*The other 0.1% includes Assemblyman Mark “I’m Not Jay!” Leno, who believes that the sentence “[o]nly marriage between a man and a woman is valid or
recognized in California” means “California won’t recognize out of state gay marriages but has no policy prohibiting gay marriages from being performed in state.” If you can explain the logic behind that, you’re smarter than I am, but then again, that’s to be expected now that I’ve been declared a moron by The Man Who Coined The Term “Blogosphere” (TM).
UPDATE: Eugene Volokh has more.